Bently et al v. United Transportation Union et al

District of Nebraska, ned-8:2005-cv-00071

ORDER TO SHOW CAUSE - The plaintiffs Tyson Buffington, Terry L. Coon, Chris Elsten, Rick L. Fletcher, Carlos Streit, John Gray and G.C. Scovill shall have to on or before 5/18/07, to show cause by filing an explanation with the Clerk of Court for the failure to appear at the scheduled planning conference in accordance with the prior order of the court. The Clerk of Court shall send a copy of this order to each of the pro se plaintiffs. Show Cause Deadline set for 5/18/2007. Ordered by Magistrate Judge Thomas D. Thalken. - (PAPER COPIES TO PRO SE PLAINTIFFS)

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8:05-cv-00071-JFB-TDT Doc # 131 Filed: 04/26/07 Page 1 of 3 - Page ID # 1524 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA M.A. Bently, et al.,)) Plaintiffs,) 8:05CV71) vs.) SHOW CAUSE) UNION TRANSPORTATION UNION and) UNION PACIFIC RAILROAD CO.,)) Defendants.) Despite a previous order by the court, the plaintiffs Tyson Buffington, Terry L. Coon, Chris Elsten, Rick L. Fletcher, Carlos Streit, John Gray and G.C. Scovill failed to appear at the planning conference scheduled for April 25, 2007. The Federal Rules of Civil Procedure provide for the imposition of sanctions if a party fails to comply with an order of the court, frustrates and impedes discovery, or otherwise wilfully ignores his or her obligations under the court's rules. "Pro se litigants are not excused from complying with court orders or substantive and procedural law." Farnsworth v. City of Kansas City, Mo., 863 F.2d 33, 34 (8th Cir. 1988), cert. denied, 493 U.S. 820 (1989). Federal Rule of Civil Procedure 16(f) authorizes sanctions "[i]If a party or party's attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference." In such circumstances, the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D)1. In lieu of or in addition to any other sanction, the judge shall require 1 Fed. R. Civ. P. 37(b)(2) sets forth an array of possible sanctions if a party "fails to obey an order to provide or permit discovery ... or if a party fails to obey an order entered under Rule 26(f)." Such sanctions include: (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; (D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination. . . . (emphasis added). 8:05-cv-00071-JFB-TDT Doc # 131 Filed: 04/26/07 Page 2 of 3 - Page ID # 1525 the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust. Fed. R. Civ. P. 16(f) (emphasis added). Similarly, Rule 41(b) states: Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. Fed. R. Civ. P. 41(b) (emphasis added). Therefore, the plaintiffs shall have an opportunity to show cause by filing a written "Response to Order to Show Cause" addressing why this litigation should not be dismissed as against each of them for failure to prosecute. In the absence of a timely and sufficient Response to Order to Show Cause, the individual plaintiffs' may be subject, without further notice, to dismissal without prejudice. Upon consideration, IT IS ORDERED: 1. The plaintiffs Tyson Buffington, Terry L. Coon, Chris Elsten, Rick L. Fletcher, Carlos Streit, John Gray and G.C. Scovill shall have to on or before May 18, 2007, to show cause by filing an explanation with the Clerk of Court for the failure to appear at the scheduled planning conference in accordance with the prior order of the court. 2. The Clerk of Court shall send a copy of this order to each of the pro se plaintiffs: Tyson Buffington G. C. Scovill Terry Coon 900 East 6th St. 2405 W. 16th St. 1306 W. 6th St. North Platte, NE 69101 North Platte, NE 69101 North Platte, NE 69101 2 8:05-cv-00071-JFB-TDT Doc # 131 Filed: 04/26/07 Page 3 of 3 - Page ID # 1526 Chris Elsten John Gray Carlos Streit 602 W. 9th St. 2417 West 16th St. 2916 Birchwood Rd. North Platte, NE 69101 North Platte, NE 69101 North Platte, NE 69101 Rick L. Fletcher 809 W. 10th St. North Platte, NE 69101 DATED this 26th day of April, 2007. BY THE COURT: s/ Thomas D. Thalken United States Magistrate Judge 3